Freedom of Conscience – What it Means for Canadians

While the Canadian Charter of Rights and Freedoms (“Charter”) s. 2(a) provides that “everyone has the right of freedom of conscience and religion”, the Supreme Court of Canada (“SCC”) has only ever heard cases that primarily engage freedom of religion. It has not yet heard a freedom of conscience case that does not also involve freedom of religion. The Court has made limited comments about freedom of conscience in minority decisions or in obiter (a remark said in passing that does not form a necessary part of the court’s decision). Since freedom of religion and freedom of conscience are two different (albeit related) rights, it would be helpful if the Supreme Court of Canada would be asked to provide guidance on freedom of conscience.

In the meantime, we have some guidance in international law, academic literature and other caselaw. Freedom of conscience in a democratic society is said to be the “freedom to have, hold and act upon (or not) one’s conscientiously-held beliefs” (Greg Peters, “Nurturing the Spirit of Democracy: Freedom of Conscience” University of New Brunswick, 2001 Online: http://www.unb.ca/democracy/English/Ideas/Freedoms/Conscience/conscience%20paper.pdf)

International law provides the following guidance in the Universal Declaration of Human Rights:

Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.

Article 18: Everyone has the right to freedom of thought, conscience and religion; this includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The latter article is echoed in the International Covenant on Civil and Political Rights, which provides:

Article 18: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

The SCC has provided guidance in the case of R v Big M Drug Mart Ltd., [1985] 1 SCR 295. This case deals with a challenge to the Lord’s Day Act. Chief Justice Dickson states (para 123):

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.

Because Chief Justice Dickson states that the protection in Charter s. 2(a) protects “whatever” beliefs our consciences dictate, this implies that non-religious beliefs may be protected as well as religious beliefs.

In R v Morgentaler, [1988] 1 SCR 30, Justice Bertha Wilson wrote a concurring decision with respect to the constitutionality of the abortion provisions of the Criminal Code. She discusses the finding of Chief Justice Dickson (in Big M Drug Mart) with respect to both freedom of religion and freedom of conscience at pages 177-178:

The Chief Justice sees religious belief and practice as the paradigmatic example of conscientiously-held beliefs and manifestations and as such protected by the Charter. But I do not think he is saying that a personal morality which is not founded in religion is outside the protection of s. 2(a). Certainly, it would be my view that conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a). In so saying I am not unmindful of the fact that the Charter opens with an affirmation that ‘Canada is founded upon principles that recognize the supremacy of God….’’ But I am also mindful that the values entrenched in the Charter are those which characterize a free and democratic society.

Justice Wilson goes on to state (at page 179):

It seems to me, therefore, that in a free and democratic society ‘freedom of conscience and religion’ should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Indeed, as a matter of statutory interpretation, ‘conscience’ and ‘religion’ should not be treated as tautologous if capable of independent, although related, meaning.

…while keeping in mind that the Charter has established the essentially secular nature of Canadian society and the central place of freedom of conscience in the operation of our institutions. As Dickson J. said in Big M Drug Mart, supra, at p. 336:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter.

He went on to add (at p. 346):

It should also be noted . . . that an emphasis on individual conscience and individual judgment also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of selfgovernment.

In Syndicat Northcrest v Amselem, [2004] 2 SCR 551, a case largely about freedom of religion, the SCC was sharply divided on the scope of the right. The majority (per Justice Iacobucci), broadly defined freedom of religion as including sincerely held subjective beliefs that have a religious nexus, regardless of whether the beliefs are supported by objective evidence of religious dogma (authoritative principles) (para 39). Justice Bastarache, in dissent, held that the majority’s approach did not adequately distinguish between “genuine religious beliefs and personal choices or practices that are unrelated to the freedom of conscience” (para 135). This would appear to treat freedom of religion and conscience as synonymous. He also noted that religious beliefs must be connected to a body of objectively identifiable religious precepts (paras 138 to 144). Justice Bastarache’s interpretation of freedom of religion could be quite limiting for freedom of conscience.

In Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Justice Rosalie Abella, writing for the minority, cites from a European Court of Human Rights judgment (Kokkinakis v Greece, Series A No. 260-A), which found that (para 128):

. . . freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

Note that the European decision clearly provides that “freedom of conscience” protects secular values and opinions.

There are some lower court decisions that appear to recognize the independent significance of protecting practices that are grounded in non-religious belief systems. In Roach v Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 FC 406, a Toronto resident, born in Trinidad and Tobago, applied for Canadian citizenship, but because of his republican views, was unwilling to swear allegiance to the Queen as required in the citizenship ceremony. He sought a declaration from the court that he was entitled to become a citizen without taking the oath or affirmation in its current form. He argued that the oath was a violation of his right to freedom of conscience under the Charter (among other rights violations). While the majority found no Charter violations, Justice Linden said the following about freedom of conscience:

It seems, therefore, that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under paragraph 2(a) of the Charter. For example, a secular conscientious objection to service in the military might well fall within the ambit of freedom of conscience, though not religion. However, as Madam Justice Wilson indicated, ‘conscience’ and ‘religion’ have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by paragraph 2(b).

In Maurice v Canada (Attorney General), [2002] FCT 69 (“Maurice”), a federal inmate was entitled to receive a vegetarian diet until he renounced his Hare Krishna faith. Then, Correctional Services Canada (“CSC”) refused to provide him with a vegetarian diet, even though Maurice insisted that it was a matter of moral conscience. In finding that his freedom of conscience had been violated, Justice Campbell said (para 8):

Thus, while the CSC has recognized its legal duty to facilitate the religious freedoms outlined in the Charter, freedom of conscience has effectively been ignored. Section 2(a) of the Charter affords the fundamental freedom of both religion and conscience, yet by the CSC’s policy, inmates with conscientiously held beliefs may be denied expression of their “conscience”. In my opinion the CSC’s approach is inconsistent. The CSC cannot incorporate s.2(a) of the Charter in a piecemeal manner; both freedoms are to be recognized.
Justice Campbell was satisfied that vegetarianism is a belief system (the consumption of animals is morally wrong) that qualified as conscientious in this case (Maurice, para 9).
In commenting on this case, Bruce Ryder states that “Not all beliefs or opinions can qualify as matters of conscience; otherwise freedom of conscience would become freedom to disregard all laws with which we disagree” (“State Neutrality and Religious Freedom” (2005) 29 SCLR (2d) at 169 193 (“Ryder”)). He goes on to argue that freedom of conscience under Charter s. 2(a) “ought to embrace comprehensive religious belief systems that have the kinds of significance in the lives of believers analogous to the significance of religion in the lives of the devout” (Ryder at 193-4).

David Brown argues that the SCC to date has viewed freedom of religion and freedom of conscience as distinct, but “closely related concepts” (“Neutrality or Privilege? A Comment on Religious Freedom” (2005) 29 SCLR (2d) 221 at 228 (“Brown”)). He also agrees with Ryder that “not all beliefs or opinions can qualify as matters of conscience” but also that there needs to be more analysis about the scope of freedom of conscience, “its practical manifestation in individual conduct and the extent to which the Charter offers protection against state actions materially affecting such conduct” (Brown at 229).

In short, religious belief is sustained by faith, conscientious belief by reason. It is true that the claims of religion and the claims of conscience frequently coincide, as in conscientious objector cases, for religion commonly asks us to believe what there is reason to believe as a matter of conscience. Yet only the claims of religion are consequently referred to as faith, for only the claims of religion are endorsed as a matter of faith. The claims of conscience, by contrast, are the product of reason.

What is freedom of conscience? The existing caselaw and authorities seem to suggest that freedom of conscience and freedom of religion can be separate and should not be conflated. In addition, they hint that freedom of conscience would embrace strongly held moral and ethical beliefs. However, until there is a SCC case that addresses freedom of conscience directly, it is difficult to predict its exact meaning. In addition, it may be that the SCC will struggle with this concept as much as it has with freedom of religion. Many of the rights in the Charter are elusive and difficult to define. Yet, they are critical in a democracy.
Author: Linda McKay-Panos, Alberta Civil Liberties Research Centre; Originally published in LawNow March/April 2012